Law & Inequality: A Journal of Theory and Practice
Volume 24 | Issue 2
Article 4
2006
Every Reasonable Means: Due Process and the
(Non)Enforcement of a Restraining Order in
Gonzales v. Town of Castle Rock
Amber Fink
Follow this and additional works at: http://scholarship.law.umn.edu/lawineq
Recommended Citation
Amber Fink, Every Reasonable Means: Due Process and the (Non)Enforcement of a Restraining Order in Gonzales v. Town of Castle Rock,
24 Law & Ineq. 375 (2006).
Available at: http://scholarship.law.umn.edu/lawineq/vol24/iss2/4
Law & Inequality: A Journal of Theory and Practice is published by the
University of Minnesota Libraries Publishing.
Every Reasonable Means:
Due Process and the (Non)enforcement of
a Restraining Order in Gonzales v. Town
of Castle Rock
Amber Fink*
"It is a purpose of the ancient institution of property to protect
those claims upon which people rely in their daily lives,
reliance that must not be arbitrarily undermined." 1
"I don't lose three children and not do something about it.
[The lawsuit] is the only way.., my 2best shot to make a
change, to make the world a little safer."
Introduction
At 5:30 pm on June 22, 1999, Rebecca, Katheryn, and Leslie
Gonzales were still alive. 3 Their father, Simon Gonzales, picked
them up from the front yard of their mother's house in Castle
Rock, Colorado. 4 This was not a striking or unusual event on its
face, except that by this action Simon violated the provisions of the
permanent restraining order issued against him on behalf of Ms.
Gonzales and the three girls several weeks earlier. 5 Jessica
Gonzales, mother of the three girls, aged ten, nine, and seven,
called the Castle Rock Police Department at 7:30 pm to report her
children missing. 6 Upon their arrival at her house, Jessica showed
the police a copy of the restraining order.7 The police told her that
* J.D. expected 2007, University of Minnesota Law School. The author would
like to thank her mother, her JLI colleagues, and Pat.
1. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).
2. Gonzales v. Castle Rock, CBS NEWS, 60 MINUTES (Mar. 20, 2005),
httpJ/www.cbsnews.com/stories/2005/03/17/60minutes/main681416shtml (quoting Jessica
Gonzales).
3. Gonzales v. Castle Rock, 125 S. Ct. 2796, 2800-02 (2005); Gonzales v. Castle
Rock, 366 F.3d 1093, 1096-98 (10th Cir. 2004).
4. 125 S. Ct. at 2801.
5. Id.; see also 366 F.3d at 1096.
6. 125 S. Ct. at 2801.
7. Id.
Law and Inequality
[Vol. 24:375
nothing could be done; that she should call again later 8 She then
verified that her husband had taken the children, and called the
police again. 9 She called once more, and the police still did
nothing. 10 Given no response to her requests for aid, she called for
the fifth time. Finally, she went to the station herself, at 12:50 in
the morning, where an officer took an incident report and then
went on a late-night dinner break.1 At 3:20 am, Simon arrived at
the police station and was killed after he opened fire; all three of
his daughters were found dead in the cab of his truck. 12 During
the ten hours that had lapsed since Simon Gonzales violated his
restraining order, and in the eight hours since the police became
aware of his violation, Simon murdered Rebecca, Katheryn, and
Leslie.
Jessica brought an action under section 1983 of the Civil
Rights Act, 13 asserting that Castle Rock and its police department
violated her procedural and substantive due process rights in their
failure to enforce the restraining order properly. 14 The United
States District Court for the District of Colorado dismissed her
case for failure to state a claim. 5 In 2002, the United States
Court of Appeals for the Tenth Circuit reversed, holding that
Jessica did possess a cognizable procedural-but not a
substantive-due process property interest in enforcement of the
restraining order. 16 In 2005, the Supreme Court decided that in
those hours before the Gonzales daughters' death, the police had
no mandatory duty to enforce the restraining order against Simon
Gonzales. The Court indicated that the Tenth Circuit was
mistaken in the belief that Jessica held a due process property
interest in police enforcement of the order for protection.17 Several
factually-similar cases have already predictably adhered to the
Gonzales reasoning.' 8 As a result, plaintiff redress for the failure
8. Id.
9. Id. at 2801-02.
10. Id.
11. Id. at 2802.
12. Id. at 2800-02; see also 366 F.3d at 1097-98.
13. 42 U.S.C. § 1983 (2004).
14. Gonzales v. Castle Rock, 307 F.3d 1258, 1260 (10th Cir. 2002).
15. See id. at 1266.
16. Id.; see also Gonzales, 366 F.3d 1093.
17. 125 S. Ct. at 2810.
18. See Caldwell v. City of Louisville, No. 3:01CV-195-S, 2005 WL 2290589
(W.D. Ky. Sept. 19, 2005) (dismissing plaintiffs claim, finding case at bar to be
factually indistinguishable from Gonzales); Starr v. Price, 385 F. Supp. 2d 502
(M.D. Pa. 2005) (holding that plaintiff did not have a protected property interest in
enforcement of protective order after Gonzales; protective order contained the
EVERY REASONABLE MEANS
20061
of police to enforce protective orders is threatened with extinction.
This Article challenges the holding of Gonzales v. Town of
Castle Rock and its successors by exposing its analytical
weaknesses, and implores other courts to challenge the holding as
well. Part I provides a background on domestic violence and
protection orders generally. Part I also discusses procedural due
process rights formulated and guaranteed by the Constitution and
courts and sheds light on the Fourteenth Amendment framework
Finally, Part I examines
as it relates to protective orders.
Colorado law related to the type of restraining order at issue in
Gonzales. Part II examines the holding and supporting analysis of
Part III
Gonzales, as well as its referenced legal authority.
critiques the Gonzales Court's reasoning using the same case law
relied upon in Gonzales, and the Colorado legislative history,
which is surprisingly absent within the majority opinion. Part IV
explains why a focused critique of Gonzales matters.
I. Background
A. Domestic Violence
Domestic violence accounts for 1,300 deaths nationwide every
year.19 On average, nearly four women are murdered by their
romantic partners every day, 20 and 33% of all women murdered in
21
this country die by the hands of a romantic partner.
Additionally, children under thirteen constitute 23% of murder
victims killed by a family member, while comprising only 3% of
non-family murder victims. 22 Actual enforcement of protective
orders lessens these tragedies, 23 while failure to enforce an
mandatory language "shall" to arrest and seize weapons). But see Hudson v.
Hudson, No. 04-2662-DP, 2005 WL 2253612 (W.D. Tenn. Sept. 14, 2005) (finding
that officers had mandatory duty to arrest violator of protective order when
probable cause is present).
19. INTIMATE PARTNER VIOLENCE: FACT SHEET, NAT'L CTR. FOR INJURY
PREVENTION & CONTROL (2005), http://www.cdc.gov/ncipc/factsheets/ipvfacts.htm.
20. Brief for National Network to End Domestic Violence et al. as Amici Curiae
Supporting Respondents at 20, Town of Castle Rock v. Gonzales, 125 S. Ct. 2796
(2005) (No. 04-278) [hereinafter NNEDV Brief].
21. Proclamation No. 7717, 68 Fed. Reg. 59,079 (Oct. 8, 2003).
22. U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, FAMILY VIOLENCE
STATISTICS 1 (2005), http://www.ojp.usdoj.govlbjs/pub/pdf/fvs.pdf.
23. See AM. BAR ASS'N, COMM'N ON DOMESTIC VIOLENCE, REPORT NO. 114 TO
THE
HOUSE
OF
DELEGATES
2,
5
available
at
http://www.abanet.org/adminlaw/annual2005/counciLagenda114Resolution.pdf
(discussing results of a study illustrating that higher rates of arrest for protective
order violations were linked to a decrease in re-abuse rates for victims); Sarah
Mausolff Buel, Note, Mandatory Arrest for Domestic Violence, 11 HARV. WOMEN'S
[Vol. 24:375
Law and Inequality
existing order increases the recipient's risk of danger.2 4
25
Seventy-three percent of family violence victims are female.
Females comprise 84% of spousal abuse victims, and 86% of abuse
victims from a boyfriend or girlfriend.26 Moreover, according to
the Department of Justice, 75% of the persons who commit family
violence are male; males constituted 83% of spousal murderers
27
and 75% of murderers killing a boyfriend or girlfriend.
Females are more likely than males to be victimized by their
partners. In 2004, 21% of offenders victimizing women were
described as intimates and 34% were described as strangers, while
only 4% of offenders victimizing males were intimate partners,
and 50% were strangers. 28 While one-third of female murder
victims were killed by their partner, only 3 to 4% of male victims
were murdered by an intimate. 29 These factors compelled the
Department of Justice (DOJ) to proclaim that, "intimate partner
violence should be considered first and foremost a crime against
women, and prevention strategies should reflect this fact."30
According to statistics compiled by the DOJ, 13% of spousal
L.J. 213, 215 (1988) ("[E]vidence shows that arrest substantially reduces the
number of domestic assaults and murders."); cf. Amy Farmer & Jill Tiefenthaler,
Explaining the Recent Decline in Domestic Violence, 21 CONTEMP. ECON. POL'Y 158,
167 (2003) ("[T]he provision of legal services significantly lowers the incidence of
domestic violence.").
24. See Press Release, Legal Momentum, Castle Rock Decision Puts Violence
Victims at Risk (June 27, 2005), http://www.legalmomentum.org/news/pr06-2705.shtml ("Without proper police enforcement, protective orders are merely pieces
of paper that may even serve to incite abusers' anger."); Press Release, Nat'l Crime
Victim Bar Ass'n, National Crime Victim Bar Association Asks Supreme Court to
Rule in Favor of Victims on Protective Orders (Feb. 11, 2005),
http://www.ncvc.org/vb/AGP.Net/Components/documentViewer/Download.aspxnz?D
ocumentID=39534
("[Elvery time a protective order is violated without
consequence to the offender, a victim is more likely to face escalated violence and
even death-and other victims lose faith in the legal instrument designed to protect
them."); see NNEDV Brief, supra note 20, at 4 ("[U]nlike ordinary citizens without
a protective order, a victim of domestic violence who seeks a protective order risks
enhanced danger from her batterer. When law enforcement views a protective order
as a mere suggestion, it enhances the likelihood of further violence.").
25. U.S. DEP'T OF JUSTICE, supra note 22, at 1.
26. Id. at 1.
27. Id. at 14.
28. U.S.
DEP'T
OF
JUSTICE,
BUREAU
OF
JUSTICE
STATISTICS,
CRIME
CHARACTERISTICS 1-2 (2005), http://www.ojp.usdoj.gov/bjs/cvict-c.htm.
29. U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, HOMICIDE TRENDS
IN
THE
U.S.:
INTIMATE
HOMICIDE
3
(2004),
http://www.ojp.usdoj.gov/bjs/homicide/intimates.htm.
30. U.S DEP'T OF JUSTICE, NAT'L INST. OF JUSTICE, EXTENT, NATURE AND
CONSEQUENCES OF INTIMATE PARTNER VIOLENCE: FINDINGS FROM THE NATIONAL
VIOLENCE
AGAINST
WOMEN
http://www.ncjrs.org/pdffiles1/nij/181867.pdf.
SURVEY
55
(2000),
2006]
EVERY REASONABLE MEANS
abuse victims did not report the crime because they believed it was
"not important to the police," while only 3% of incidents involving
children and 6% of incidents involving other family members were
not reported because the crime was not deemed important to the
police. 3' When asked why they chose not to report partner abuse
to the police, 61.5% of women said the police would not have
believed them, and nearly all said they did not think the police
could do anything about the assault.32 Additionally, 11.7% of
female victims indicated that they did not report their assaults to
the police out of fear of the perpetrator, while just 1.9% of male
victims felt similarly. 33 Finally, 17% of female victims of intimate
partner physical assault obtained a protective order against the
offender after the most recent incident, while only 3.5% of men
34
physically assaulted did so.
B. Protective Orders
A protective order, when enforced, is one of the most effective
tools in ensuring the safety of protected persons.35 Thirty-one
states, including Colorado, have enacted domestic violence
provisions which require law enforcement to arrest a person who
violates a protection order. 36 Yet despite mandatory arrest laws
and the success of arrest in quelling violence, police often do not
follow these provisions and enforce restraining orders as required
37
by law.
Without enforcement, a protection order can do little to stop
the persons against whom they are issued from committing further
violence, 38 and can even provoke further violence against those
seeking them. 39 Separation violence is a substantial concern in
31. U.S. DEP'T OF JUSTICE, supra note 22, at 26.
32. U.S. DEP'T OF JUSTICE, supra note 30, at 51.
33. Id. at 50.
34. Id. at 52.
35. See AM. BAR ASS'N; Buel, supra note 23.
36. See, e.g., MISS. CODE ANN. § 99-3-7(3)(a) (Supp. 2004) ("[any law
enforcement officer shall arrest"); N.H. REV. STAT. ANN. § 173-B:9 (2001 & Supp.
2004) ("[pleace officers shall arrest the defendant"); WIS. STAT. ANN. § 813.12 (West
Supp. 2004) ("[a] law enforcement officer shall arrest"), § 813.125 ("[a] law
enforcement officer shall arrest"); see also NNEDV Brief, supra note 20, at n. 16.
37. See Buel, supra note 23, at 217-18; AM. BAR ASS'N, supra note 23, at 5.
No.
38. OFFICE FOR VICTIMS OF CRIME, U.S. DEP'T OF JUSTICE, LEGAL SERIES BULL.
4, ENFORCEMENT
OF PROTECTIVE ORDERS
1 (2002), available at
http://www.ovc.gov/publications/bulletins/legalseries/bulletin4/1.html (stating that
protective orders "are effective only when the restrained party is convinced the
order will be enforced").
39. See supra note 24.
Law and Inequality
[Vol. 24:375
the process of obtaining a protective order,40 as "[albusers often
react violently to the issuance of a protective order barring them
from contact with their victims.
...41 According to the American
Bar Association:
[p]rotective orders only reduce the risk of further violence if
the restrained party is convinced they will be enforced. If
protection orders are not enforced by law enforcement and the
courts, they are nothing more than pieces of paper that
actually increase the victim's risk. Reliance on protection that
does not actually exist places victims in even greater danger
than if they'd never obtained a protective order. 42
The issuance of a protective order evokes a potentially volatile
combination of respondent's anger and petitioner's reliance.
Subsequent failure of enforcement in these circumstances leads to
correspondingly disastrous consequences.
C. ProceduralDue Process
The Fourteenth Amendment of the Constitution provides
that "[n]o State shall make or enforce any law which shall...
deprive any person of life, liberty, or property, without due process
of law. .. ."43 Jessica Gonzales brought a claim under 42 U.S.C. §
1983, which allows a party to bring an action upon a showing that
he or she was deprived of a right secured by the Constitution or
44
federal law by a person acting under the color of state law.
Procedural due process enables "a safeguard of the security of
interests that a person has already acquired in specific benefits.
These interests-property interests-may take many forms."45
40. Mary R. Lauby, Regarding Town of Castle Rock v. Jessica Gonzales,
STATEMENT OF EXEC. DIR., (Jane Doe, Inc., Boston, MA), June 27, 2005, at 3,
available
at
http://www.janedoe.org/about/2005%2006%2007%2OGonzales
%20US%20SC%20decision.pdf.
41. NNEDV Brief, supra note 20, at 27.
42. AM. BAR ASS'N, supra note 23, at 3.
43. U.S. CONST. amend. XIV, § 1.
44. See 42 U.S.C. § 1983; Sameric Corp. of Delaware, Inc. v. City of
Philadelphia, 142 F.3d 582, 590 (3d Cir. 1998); Jacobs, Visconsi & Jacobs, Co. v.
City of Lawrence, 927 F.2d 1111, 1115 (10th Cir. 1991); Starr v. Price, 385 F. Supp.
2d 502, 506 (M.D. Pa. 2005). Section 1983 of Title 42 of the U.S. Code provides in
part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress. ..
42 U.S.C. § 1983.
45. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 576 (1972) (holding
2006]
EVERY REASONABLE MEANS
The Supreme Court has rejected the traditional dichotomy of
"rights" and "privileges" in the context of due process guarantees, 46
and has noted that interests in property are "not limited to a few
rigid, technical forms,"' 47 but instead "extend well beyond actual
ownership of real estate, chattels or money."48 The Supreme Court
accordingly has found protected property interests in benefits
49
ranging from those which can be captured in monetary terms, to
more unquantifiable interests such as education, 50 drivers'
52
licenses, 51 and causes of action.
In order to claim a property interest in a benefit, an
individual must not only desire or unilaterally expect such an
' 3
interest, but must have "a legitimate claim of entitlement to it."
The Constitution itself does not contain substantive property
rights.5 4 Instead, these claims of entitlement are created by
independent sources of state law such as "rules or understandings
that secure certain benefits and that support claims of entitlement
to those benefits." 55 The constitutional right to due process,
however, is provided for, and procedural adequacy is determined
56
by, constitutional guarantee.
For a "legitimate" and thus cognizable interest to exist, the
state law or provision purportedly creating the entitlement must
that a professor had no property interest in reemployment where no state statute
or university policy so dictated).
46. See Roth, 408 U.S. at 572; Graham v. Richardson, 403 U.S. 365, 374 (1971);
Goldberg v. Kelly, 397 U.S. 254, 262 (1970).
47. Perry v. Sindermann, 408 U.S. 593, 601 (1972) (holding that a professor at a
state college possessed property interest in continued employment; the claim
supported by rules of the college providing the benefit and mutual understanding of
benefit akin to implied contract); see also Roth, 408 U.S. at 577.
48. Roth, 408 U.S. at 572.
49. See Mathews v. Eldridge, 424 U.S. 319, 332 (1976) (disability benefits);
Perry v. Sindermann, 408 U.S. 593, 599 (1972) (continued public employment);
Goldberg v. Kelly, 397 U.S. 254, 261-62 (1970) (welfare benefits); Sniadach v.
Family Finance Corp., 395 U.S. 337, 338-39 (1969) (garnished wages); Speiser v.
Randall, 357 U.S. 513, 528-29 (1958) (tax exemption).
50. See Goss v. Lopez, 419 U.S. 565, 574 (1975).
51. See Bell v. Burson, 402 U.S. 535, 539 (1971).
52. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982); see also
Barry v. Barchi, 443 U.S. 55, 64 (1979) (professional licenses); Memphis Light, Gas
& Water Div. v. Craft, 436 U.S. 1, 11-12 (1978) (government utility services).
53. Roth, 408 U.S. at 577.
54. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985); see also
Goss v. Lopez, 419 U.S. 565, 573 (1975); Roth, 408 U.S. at 576.
55. Roth, 408 U.S. at 577.
56. See Loudermill, 470 U.S. at 541 (Burger, C.J., dissenting) (quotation
omitted) ("While the legislature may elect not to confer a property interest.., it
may not constitutionally authorize the deprivation of such an interest, once
conferred, without appropriate procedural safeguards.").
Law and Inequality
[Vol. 24:375
contain:
particularized standards or criteria guid[ing] the State's
decisionmakers. If the decisionmaker is not required to base
its decisions on objective and defined criteria, but instead can
deny the requested relief for any constitutionally permissible
reason or for no reason at all, the State57 has not created a
constitutionally protected liberty interest.
Conversely, the presence of mandatory language, coupled with
"specified substantive predicates to limit discretion,"55 creates a
59
protected interest.
While traditionally the due process clause does not require
that the government protect the life, liberty, or property of
60
individuals from adverse actions by other private individuals,
courts have found that protective orders that satisfy the
mandatory language and substantive criteria requirements can
create a property interest in police enforcement. 1 In Siddle v.
57. Olim v. Wakinekona, 461 U.S. 238, 249 (1983) (internal quotations omitted)
(citations omitted) (holding that interstate transfer of plaintiff prisoner did not
implicate the Due Process Clause since the transfer guidelines contained no
standards governing the exercise of discretion in making such a decision; "the
prison Administrator's discretion to transfer an inmate is completely unfettered").
58. Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 463 (1989) (internal
quotations omitted).
59. See Bd. of Pardons v. Allen, 482 U.S. 369, 375-76 (1987) (citation omitted)
(asserting that the mandatory language of "shall," in connection with specific
criteria that must be met in order to deny parole, creates presumption of release;
discretion may "signify that 'an official must use judgment in applying the
standards set him [or her] by authority" and that "the presence of official discretion
in this sense is not incompatible with the existence of a liberty interest .. ");
Hewitt v. Helms, 459 U.S. 460, 471 (1983) ("[T]he repeated use of explicitly
mandatory language in connection with requiring specific substantive predicates
demands a conclusion that the State has created a protected liberty interest.");
Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 12 (1979)
(structure of statute and word "shall" provides measure of constitutional
protection); Cosco v. Uphoff, 195 F.3d 1221, 1223 (10th Cir. 1999) (asserting that
property interest arises when "the regulatory language is so mandatory that it
creates a right to rely on that language thereby creating an entitlement that could
not be withdrawn without due process").
60. See DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 195
(1989) (holding that state employees possessed no constitutional duty to protect a
son from his father after hearing reports of abuse: the claim "is one invoking the
substantive rather than the procedural component of the Due Process Clause;
petitioners do not claim that the State denied Joshua protection without according
him appropriate procedural safeguards").
61. See Hudson v. Hudson, No. 04-2662-DP, 2005 WL 2253612 (W.D. Tenn.
Sept. 14, 2005); Siddle v. City of Cambridge, 761 F. Supp. 503 (S.D. Ohio 1991);
Coffman v. Wilson Police Dep't, 739 F. Supp. 257, 264 (E.D. Pa. 1990) ('[A] court
order may create a property right. If it did not, much of the work of this, or any
other court, would be nugatory..."); Campbell v. Campbell, 682 A.2d 272, 274
(N.J. Super. Ct. Law Div. 1996); Nearing v. Weaver, 670 P.2d 137 (Or. 1983).
20061
EVERY REASONABLE MEANS
City of Cambridge,62 the court held that a protective order secured
pursuant to state law created "a property right which incurs a
duty on the part of the government." 63 The Ohio statute at issue
mandated that "any officer of a law enforcement agency shall
enforce a protection order issued... by any court in this state in
accordance with the provisions of the order.'6 4 The court in
Coffman v. Wilson Police Department5 held that the state statute
regarding protective orders did not create a property interest in
protection because the statute used "may," not "shall," in the
context of arrests upon violation of the order.6 6 However, the
Coffman Court did hold that the court order itself created an
interest since police "shall" enforce it--"shall" being a mandatory
67
term.
While the decision to arrest involves individual judgments as
to the existence of probable cause, courts have repeatedly asserted
that probable cause "is measured against an objective standard,"6s
and is judged by whether "the facts and circumstances within [an
officer's] knowledge and of which they had reasonably trustworthy
information were sufficient to warrant a prudent man in believing
that the petitioner had committed or was committing an offense.' 9
62. 761 F. Supp. 503 (S.D. Ohio 1991).
63. Siddle, 761 F. Supp. at 509-10 C[A] protected property interest can be
created by state law. In this case, the protective order is such an interest. Once
such a substantive right attaches, the procedural arm of the Due Process Clause
requires that the government refrain from depriving the individual of the right
without due process.").
64. OHIo REV. CODE ANN. § 3113.31(F)(3) (2003) (emphasis added).
65. Coffman, 739 F. Supp. 257.
66. Id. at 264.
67. Id. ("The word 'shall' is mandatory, not precatory, and its use in a simple
declarative sentence brooks no contrary interpretation."). For discussion on the use
of the word "shall" in Colorado law, see Allison v. Indus. Claim Appeals Office, 884
P.2d 1113, 1119 (Colo. 1994) ("The phrasing of this mandate in the terms of'shall'
provides a mandatory constitutional right..."); see also Hernandez v. District
Court, 814 P.2d 379, 381 (Colo. 1991) ("The term 'shall' deprives the trial court of
any discretion to deny..."); People v. Guenther, 740 P.2d 971, 975 (Colo. 1987)
(internal quotations omitted) (asserting that the "word 'shall,' when used in a
statute, involves a mandatory connotation and hence is the antithesis of discretion
or choice").
68. United States v. Davis, 197 F.3d 1048, 1051 (10th Cir. 1999) (holding that
arrest of defendant was supported by probable cause under Fourth Amendment
and Wyoming law).
69. Beck v. State, 379 U.S. 89, 91 (Ohio 1964) (holding that probable cause was
not present when officer had only a picture of defendant and knew he had a prior
record for similar offenses, and no other evidence that defendant had committed a
crime); see also Carroll v. United States, 267 U.S. 132, 162 (1925) (whether facts
and circumstances "warrant a man of reasonable caution in the belief' that a crime
has been committed); Guffey v. Wyatt, 18 F.3d 869, 872 (10th Cir. 1994) C'Probable
cause to arrest 'exists if facts and circumstances within the arresting officer's
Law and Inequality
[Vol. 24:375
An officer's subjective understanding or belief that probable cause
was present does not establish probable cause. 70 In the context of
protective orders, courts have found that the objectivity of
probable cause determinations does not negate the mandatory
duty to arrest, as the orders lay down specific and substantive
criteria delineating their violation, and the subsequent arrest
7
procedure that must follow. 1
D. Colorado Law
Colorado became a mandatory arrest state in 1994, with the
passage of House Bill 92-1253, codified as Colorado Revised
Statute section 18-6-803.5.72 The statute expanded Colorado's
definition of "domestic violence" to include the "invasion of home or
74
property or threat thereof,"73 updated its data registry system,
and repealed the requirement that protected parties show a copy
of their order to officers. 75 The Colorado legislature also shielded
arresting officers from liability to alleviate concerns over the
mandatory arrest requirement. 76 These alterations in the content
and function of protective orders came on the heels of the
77
enactment of the federal Violence Against Women Act of 1994,
knowledge and of which he or she has reasonably trustworthy information are
sufficient to lead a prudent person to believe the arrestee has committed or is
committing an offense."'); United States v. McCormick, 468 F.2d 68, 73 (10th Cir.
1972) (concluding probable cause determined "in relation to the circumstances as
they would have appeared to prudent, cautious and trained police officers").
70. Florida v. Royer, 460 U.S. 491, 507 (1983); see also Beck, 379 U.S. at 97 ("If
subjective good faith alone were the test [for probable cause], the protections of the
Fourth Amendment would evaporate...").
71. See Hudson v. Hudson, No. 04-2662-DP, 2005 WL 2253612 (W.D. Tenn.
Sept. 14, 2005) (holding that arrest is operational, not discretionary); Campbell v.
Campbell, 682 A-2d 272, 274 (N.J. Super. Ct. Law Div. 1996) (holding that a
statute mandating arrest upon probable cause that a violation of the order occurred
allows no discretion); Matthews v. Pickett County, 996 S.W.2d 162, 164 (Tenn.
1999); Nearing v. Weaver, 670 P.2d 137, 142 (Or. 1983) (holding that the duty to
arrest a violator of protective order was not discretionary pursuant to mandatory
language and legislative intent and that a requirement that arrest be supported by
probable cause did not negate this).
72. COLO. REV. STAT. §§ 18-6-803.5(3)(b) (2004), 803.6(1) (2004); see also
Melody K. Fuller & Janet L. Stansberry, 1994 Legislature Strengthens Domestic
Violence Protective Orders, 23 COLO. LAW. 2327, 2327-29 (1994).
73. Fuller & Stansberry, supra note 72, at 2328.
74. COLO. REV. STAT. § 18-6-803.7(2)(a) (2005).
75. COLO. REV. STAT. § 14-4-102(9) (2005); see Fuller & Stansberry, supra note
72, at 2329 ("[fIn the past, failure to provide a copy of the restraining order has led
to hesitation from police to enforce the order for fear of an illegal arrest.").
76. COLO. REV. STAT. § 18-6-803.5(5) (2005); see Fuller & Stansberry, supra
note 72, at 2329 ("[S]hielding arresting officers from liability is expected to reduce
concerns about enforcing the mandatory arrest requirements.").
77. Violence Against Women Act of 1994, Pub. L. No. 103-322, Title IV, 108
20061
EVERY REASONABLE MEANS
which requires all fifty states to enforce one another's civil
protection order under the Constitution's Full Faith and Credit
Clause, 78 and makes it a crime for a person to cross state lines
79
with the intent to violate a protective order.
Colorado Revised Statute section 18-6-803.5 recognizes the
crime of violation of a protection order,80 and peace officers'
mandatory duties to enforce the same.8 1
Section 18-6-503.5
asserts that protective orders serve to "protect the protected
person from imminent danger to life or health," and provides that
"a peace officer shall use every reasonable means to enforce a
protection order."82 Specifically, a peace officer:
shall arrest, or, if an arrest would be impractical under the
circumstances, seek a warrant for the arrest of a restrained
person when the peace officer has information amounting to
probable cause that: () The restrained person has violated or
attempted to violate any provision of a protection order; and
(II) The restrained person has been properly served with a
copy of the protection order or the restrained person has
received
actual notice of the existence and substance of such
83
order.
Moreover, a peace officer who arrests or otherwise attempts to
enforce a protection order, "shall not be held criminally or civilly
liable for such arrest or enforcement unless the peace officer acts
in bad faith and with malice or does not act in compliance with
84
rules adopted by the Colorado Supreme Court."
Colorado courts issue protection orders pursuant to several
statutory provisions, including temporary orders in marriage
dissolution cases.8 5 Colorado restraining orders contain similar
language to their statutory counterparts, including the provision
that law enforcement officials must use every reasonable means to
enforce the restraining order, and shall arrest in the existence of
Stat. 1902 (codified as amended in scattered sections of 8, 18 and 42 U.S.C. (1994)).
78. 18 U.S.C. § 2265 (2006).
79. 18 U.S.C. § 2262 (2006); see also U.S DEP'T OF JUSTICE, NAT'L INST. OF
JUSTICE, ANNUAL REPORT TO CONGRESS: DOMESTIC VIOLENCE, STALKING, AND
ANTISTALKING
LEGISLATION
(1996),
available
at
http://www.ojp.usdoj.gov/ocom/94Guides/DomViol/chap3.htm.
80. COLO. REV. STAT. § 18-6-803.5(1) (2005); see also COLO. REV. STAT. § 13-14102(12) (2005) (stating that "[t]he duties of peace officers enforcing the civil
protection order shall be in accordance with section 18-6-803.5").
81. The title of section 18-6-803.5 is labeled: "Crime of violation of a protection
order-penalty-peace officers' duties" (emphasis added).
82. § 18-6-803.5(3)(a).
83. § 18-6-803.5(3)(b).
84. § 18-6-803.5(5).
85. COLO. REV. STAT. § 14-10-108 (2004).
Law and Inequality
[Vol. 24:375
facts amounting to probable cause, or seek a warrant when arrest
is impractical.8 6 A standard Colorado restraining order was issued
7
against Simon Gonzales. 8
II. Gonzales v. Town of Castle Rock
Gonzales v. Town of Castle Rock held that Jessica Gonzales
did not have a constitutionally protected property interest in
enforcement of the restraining order issued against her husband 88
The Gonzales Court decided not to defer to the Tenth Circuit's
determination,8 9 and began its analysis by asserting that a benefit
fails to constitute a protected entitlement if government officials
"may grant or deny it in their discretion."9 0 Mandatory language
aside, the Court stated that the language in the Colorado statute
in question and the accompanying protection order do not truly
make enforcement of restraining orders mandatory.9 1 Justice
Scalia, who authored the Gonzales majority opinion, emphasized
the long history of police discretion that has co-existed with
purportedly mandatory statutes. 92 The Court cited Chicago v.
Morales93 in support of this proposition and asserted that "[i]t is
86. Gonzales v. City of Castle Rock, 125 S. Ct. 2796, 2801 (2005). The Colorado
restraining order issued to Jessica Gonzales noted that the reverse side of the order
contained, "IMPORTANT NOTICES FOR RESTRAINED PARTIES AND LAW
ENFORCEMENT OFFICIALS."
The reverse side contained the following,
"NOTICE TO LAW ENFORCEMENT OFFICIALS," which stated in part:
YOU SHALL USE EVERY REASONABLE MEANS TO ENFORCE THIS
RESTRAINING ORDER. YOU SHALL ARREST, OR, IF AN ARREST
WOULD BE IMPRACTICAL UNDER THE CIRCUMSTANCES, SEEK A
WARRANT FOR THE ARREST OF THE RESTRAINED PERSON WHEN
YOU HAVE INFORMATION AMOUNTING TO PROBABLE CAUSE
THAT THE RESTRAINED PERSON HAS VIOLATED OR ATTEMPTED
TO VIOLATE ANY PROVISION OF THIS ORDER AND THE
RESTRAINED PERSON HAS BEEN PROPERLY SERVED WITH A
COPY OF THIS ORDER OR HAS RECEIVED ACTUAL NOTICE OF THE
EXISTENCE OF THIS ORDER.
Id.
87. Id.
88. Id. The Court framed the question as follows: "[W]hether an individual who
has obtained a state-law restraining order has a constitutionally protected property
interest in having the police enforce the restraining order when they have probable
cause to believe it has been violated." Id.
89. Id. at 2804. The Court recognized that a presumption of deference is
usually given to federal court views as to the law of a state within its jurisdiction,
but decided that deference was inappropriate here-a contentious point, but one
that will not be analyzed in this Article.
90. Id.
91. Id. at 2805-06.
92. Id.
93. 527 U.S. 41 (1999) (involving a gang loitering ordinance that said that a
police officer "shall order" persons to disperse in certain circumstances).
2006]
EVERY REASONABLE MEANS
... simply 'common sense that all police officers must use some
discretion in deciding when and where to enforce city
ordinances."' 94 Were enforcement truly required, Colorado would
have needed to create a stronger indication that police
enforcement was mandated, than it did in the statutory language
as currently written.95 This is especially true, the Court asserted,
where the violator is not present or his whereabouts have not been
97
determined. 96 The Gonzales opinion cited Donaldson v. Seattle to
lend support to the proposition that "there is a vast difference
between a mandatory duty to arrest and a mandatory duty to
conduct a follow up investigation .... A mandatory duty to
investigate would be completely open-ended as to priority,
98
duration and intensity."
Even if enforcement could be seen as mandatory, the Court
still shed doubt upon whether Jessica Gonzales is entitled to such
enforcement. Since her alleged entitlement stems from Colorado's
statutory scheme, the Court reasoned that an indication of such an
entitlement would appear in the statute itself.9 9 The Court found
no such indication. 100 Finally, the Court asserted that even if
Colorado did create an entitlement in enforcement of the
restraining order, the vague and indirect nature of the entitlement
may not suffice as a cognizable property interest for due process
purposes. 1 1 The Court pointed out that "the right to have a
restraining order enforced does not 'have some ascertainable
monetary value,' even as our 'Roth-type property-as-entitlement
cases' have implicitly required."'1 2
In finding no cognizable
property interest in enforcement of Jessica's Gonzales' protective
order, the Court failed to consider any kind of process due.
III. Gonzales v. Town of Castle Rock, Revisited
The analysis through which the Gonzales majority reaches its
94. 125 S. Ct. 2796, 2806 (2005) (quoting 527 U.S. at 47, 62). Despite use of the
word "shall" in the Morales ordinance, the Gonzales Court explained that the
Supreme Court in Morales "rejected out of hand the possibility that 'the mandatory
language of the ordinance... afforded the police no discretion."' Id. (emphasis
omitted).
95. 125 S. Ct. at 2806.
96. Id.
97. 831 P.2d 1098, 1104 (Wash. App. 1992).
98. Id. at 1104 (quoted in 125 S. Ct. at 2806).
99. 125 S. Ct. at 2806.
100. Id.
101. Id. at 2809-10.
102. Id. at 2809 (quoting Thomas W. Merrill, The Landscape of Constitutional
Property,86 VA. L. REV. 885, 964 (2000)).
Law and Inequality
[Vol. 24:375
holding breaks down upon a close reading. Scalia's assertion of
police discretion and his use of Chicago v. Morales,103 although not
discussed in depth, are actually very instructive to the current
analysis. In Morales, the Supreme Court dealt with an ordinance
that required a police officer to order dispersal of whomever he
reasonably believed to be a criminal street gang member loitering
in a public place with one or more persons, and making failure to
obey such an order a violation. The Court held that statute to be
unconstitutionally vague because it failed to provide fair notice to
potential violators of prohibited conduct, and because it failed to
10 4
establish minimal guidelines for police enforcement.
The Morales Court asserted that there are no guidelines in
the ordinance for directing a person to disperse if they are in any
area with an alleged gang member; the ordinance directs the
police to order a person to leave without first asking about their
possible purposes in the area. 0 5 Concerned that the ordinance
impacts a lot of innocent conduct, the Court turned its attention to
the language conferring discretion on the police, namely in the
definition of loitering, as "[remaining] in any one place with no
apparent purpose."'10 6 The Court concluded that the ordinance
unconstitutionally provided "absolute discretion to police officers
07
to determine what activities constitute loitering."'
The Court also cites Kentucky Department of Corrections v.
Thompson, which held that Kentucky prison regulations
delineating categories of visitors who could be excluded from
visitation did not create a protected liberty interest in receiving
visitors. 08
Specifically, the regulations lacked "explicitly
mandatory language,"' 0 9 and instead stated that visitors "may" be
excluded whether they fell within the category of exclusion or
not." 0 According to the Thompson Court, "the regulations are not
worded in such a way that an inmate could reasonably expect to
1
enforce them against the prison officials."
Both cases are easily distinguished from Gonzales. Gonzales
regards the governance of mandatory enforcement of restraining
orders, which is different from providing unbridled discretion to
103.
104.
105.
106.
107.
108.
109.
110.
111.
527 U.S. 41 (1999).
Id. at 60.
Id. at 60.
Id. at 61 (internal quotations omitted).
Id. (internal quotations omitted).
490 U.S. 454, 465 (1989).
Id. at 463 (internal quotations omitted); see supra note 59.
Id. at 457 n.2.
Id. at 465.
2006]
EVERY REASONABLE MEANS
police officers to define a vague statutory term as in Morales. The
Colorado statute specifically delineates when arrest is mandatory,
and leaves minimal discretion to police officers. When enforcing
Colorado restraining orders, police are to make arrests upon
probable cause that the restrained person has violated any part of
the order. 112 The order itself lays out specific mandates. In
Jessica Gonzales' case, the original order stipulated that Simon
Gonzales was not to come within 100 yards of Jessica's property
and the Gonzales children; the modified order provided that he
only see the children on alternate weekends, for two weeks during
the summer, and for a mid-week dinner visit upon arranged
notice.113 These guidelines are distinctly objective, and stand in
clear contrast to a police officer's determination of what
constitutes "no apparent purpose" in the Morales ordinance.
Moreover, the language of the Colorado statute and
accompanying restraining order mandate enforcement by
including the word "shall," language that was absent in
Thompson. Provisions of section 18-6-803.5, defining the duty of
officers in regard to the violation of a restraining order, states that
the police "shall use every reasonable means to enforce a
restraining order," 114 and "shall arrest, or, if an arrest would be
impractical under the circumstances, seek a warrant for the arrest
of a restrained person ..."115 Colorado courts have repeatedly
held that "shall," as language of a statute, describes a mandatory
obligation outside of the scope of discretion.
Directly contrary to this line of Colorado case law, the Court
cites Donaldson v. Seattle to assert that "a true mandate" of police
enforcement would require a stronger indication than "shall use
every reasonable means to enforce a restraining order," (or even
"shall arrest"). 116 However, in contrast to the long-term protective
orders demarcated in Colorado's statute, Donaldson v. Seattle
involved a portion of Washington's statutory scheme involving onscene arrest of domestic abusers. The statute provided that police
officers "shall"" 7 arrest domestic violence perpetrators upon
probable cause. The court in Donaldson found that the statute
112. COLO. REV. STAT. § 18-6-803.5(3)(b)(1) (2005).
113. Gonzales v. Town of Castle Rock, 366 F.3d 1093, 1097 (2004).
114. COLO. REV. STAT. § 18-6-803.5(3)(a) (2005).
115. § 18-6-803.5(3)(b).
116. Gonzales v. Castle Rock, 125 S. Ct. 2796, 2806 (2005) (internal quotation
omitted).
117. The statute reads: "When a peace officer responds to a domestic violence
call and has probable cause to believe that a crime has been committed, the peace
officer shall exercise arrest powers ...." REV. CODE WASH §10.99.030(6)(a) (2005).
Law and Inequality
[Vol. 24:375
"clearly establishes a mandatory duty to arrest,"118 but
distinguished that duty from any obligation to conduct a follow-up
investigation.'1 9 The court based its reasoning on the fact that the
mandatory arrest provision only applied for a four-hour period
following notification of the incident. In the Colorado court's
words, "an outer limit on the mandatory arrest duty shows that
the act is focused on addressing the situation when the officer
confronts an abuser in the house and not creating an on-going
duty to conduct a mandatory investigation."'120 In other words, the
emphasis of Washington's statutory scheme "is on prompt
intervention and removal of the abuser, not on long-term
protection."12
A permanent protective order, in contrast, is designed for
exactly that-long-term protection. The Gonzales Court asserts
that "even in the domestic violence context,"'122 it is not clear that
mandatory arrest provisions apply to violators not present on the
scene. 23 However, the text of the Colorado statute suggests
otherwise since it mandates that police officers use "every
reasonable means to enforce a protection order,"' 24 and requires
arrest and pursuit of a warrant to arrest if immediate arrest is
impractical. This suggests that an on-going duty to arrest is a
reasonable means to enforce the order, and continues as long as
there exists probable cause for arrest. 125
There is no time
limitation imposed on these duties. In sum, the purposes behind
the Washington and Colorado statutes are different in scope and
aim, which is reflected by the different commanding language
comprising both. In this way Donaldsonis of little support in the
Gonzales case.
The Court highlights the idea that every reasonable means
entails the use of discretion to choose among available alternatives
to enforcement, which argues against the existence of a protected
property interest. 26 However, courts have before held that a
property interest in enforcement of a restraining order can and
does extend to reasonable efforts to enforce. In Siddle v. City of
Cambridge, the court asserted that, in protective order situations,
118.
119.
120.
121.
122.
123.
124.
125.
126.
Donaldson v. Seattle, 831 P.2d 1098, 1103 (Wash. App. 1992).
Id. at 1103-04.
Id. at 1104.
Id.
125 S. Ct. 2796, 2807 (2005).
Id.
COLO. REV. STAT. § 18-6-803.5(3)(a) (2005).
COLO. REV. STAT. § 18-6-803.5 (2005).
125 S. Ct. at 2807.
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EVERY REASONABLE MEANS
"[a] police department must be reasonable in its efforts to protect
the individual's safety."127 The language of the Colorado statute is
clear: law enforcement must use every reasonable means to
enforce the protective order, including arrest and seeking a
warrant. The police do not hold the discretion to do nothing. The
discretion that does lie with either the police (to arrest the person
in violation of an order), or a court (to issue a warrant based on a
determination of probable cause), is minimal, as it is based on
objective criteria. 128
The Colorado statute further removes
subjectivity from the enforcement of an order by mandating that a
police officer assume that information received from Colorado's
domestic violence registry is accurate, and requires that officers
129
enforce an order even if it is not recorded in the registry.
Throughout its opinion, the Court pays little attention to the
legislative history of Colorado's domestic violence statutes. 130 This
is unfortunate, because the legislative history of the Colorado
statute demonstrates the state legislature's intent to make
enforcement mandatory. 131 While asserting that arrest is not truly
mandatory, the Court quotes the American Bar Association (ABA)
Standards for Criminal Justice for support:
[Flor a number of reasons, including their legislative
history... it has been recognized that such statutes cannot be
interpreted literally.... [Tihey clearly do not mean that a
police officer may not lawfully decline to make an arrest. As to
third parties in these states, the full-enforcement statutes
simply have no effect, and their significance is further
127. 761 F. Supp. 503, 509 (S.D. Ohio 1991).
128. See supra notes 69-7 1.
129. CoLO.REV. STAT. § 18-6-803.5(3)(c) (2004). The statute states:
In making the probable cause determination described in paragraph (b) of
this subsection (3), a peace officer shall assume that the information
received from the registry is accurate. A peace officer shall enforce a valid
protection order whether or not there is a record of the protection order in
the registry.
Id.
130. The Colorado Supreme Court has asserted that its "primary task in
construing a statute is to ascertain and give effect to the intent of the General
Assembly." People v. Guenther, 740 P.2d 971, 975 (Colo. 1987).
131. As stated in legislative hearings over the statute:
[T]he entire criminal justice system must act in a consistent manner,
which does not now occur. The police must make probable cause arrests.
The prosecutors must prosecute every case. Judges must apply the
appropriate sentences ....
So this means the entire system must send the same message and
enforce the same moral values, and that is abuse is wrong and violence is
criminal. And so we hope that House Bill 1253 starts us down this road.
Gonzales v. Castle Rock, 307 F.3d 1258, 1265 (10th Cir. 2002) (quoting Colo. H.B.
1253: HearingBefore the Colo. H. Judiciary Comm., at 3 (Feb. 15, 1994)).
Law and Inequality
diminished.
[Vol. 24:375
132
First, this language is taken from a 1980 edition of the ABA
standards, published fourteen years before the Colorado statute
and years before many other mandatory enforcement statutes
were enacted. 33
As Colorado's domestic violence statute
illustrates, significant changes were made to the processes
surrounding restraining orders and their enforcement in 1994.
The legislative history of section 18-6-803.5 demonstrates that this
was done so that restraining orders would better combat domestic
violence-and specifically, by the mandatory arrest of violating
persons. 34 The ABA quote lists legislative history as a marker of
intent, stressing that the legislative history of a statute has a
bearing on whether enforcement is truly mandatory. In the case of
Colorado, its legislative history replies in the affirmative,
explicitly asserting the mandatory nature of the enforcement
provisions.
Secondly, protected persons in restraining orders stand in a
different position from what the ABA calls "third parties" to
mandatory enforcement statutes. Restraining orders are unique
in that they provide individualized protection to persons in need of
protective services, dissimilar from arrest statutes concerning
crimes affecting the public at large. When the Court suggests that
the mandatory language of Colorado's restraining orders "is not
perceptibly more mandatory" than a Colorado statute that
mandates police chiefs to 'pursue and arrest any person fleeing
from justice in any part of the state," ' 135 it ignores the main
difference between protective orders and generalized law
enforcement.
Protective orders by nature are directed at
specialized parties that are not deemed merely "third parties" to
enforcement measures regarding any crime. Protected parties are
persons who have sought out individualized protection against
132. Gonzales v. Castle Rock, 125 S. Ct. 2796, 2806 (2005) (quoting AMERICAN
BAR ASS'N, STANDARDS FOR CRIMINAL JUSTICE §§ 1-4.5, 124-25 (2d ed. 1980)
(emphasis added)).
133. Fuller & Stansberry, supra note 72, at 2327.
134. Id. at 2327 ("The 1994 Colorado legislative session produced several
significant domestic abuse bills that strengthened both civil and criminal
restraining order laws and procedures for victims of domestic violence."); Emily
Sack, Battered Women and the State: The Struggle for the Future of Donestic
Violence Policy, 2004 WIS. L. REV. 1657, 1670 (2004) (stating that the purposes of
mandatory arrest statutes in the 1990s were to "counter police resistance to arrests
in domestic violence cases by removing or restricting police officer discretion;
mandatory arrest policies would increase police response and reduce batterer
recidivism").
135. 125 S. Ct. at 2806 (quoting COLO. REV. STAT. § 31-4-112 (2004)).
2006]
EVERY REASONABLE MEANS
another specified person, not against the public at large.
The Court ignores this integral aspect of the protective order
when it claims that even if the Colorado statute made enforcement
mandatory, that would not necessarily mean that Jessica herself
gained an entitlement to enforcement of the mandate, as "[t]he
serving of public rather than private ends is the normal course of
the criminal law .... ."136
In contrast to statutes regarding
criminal acts or, as the Court brings up, prison guidelines,
restraining orders provide for individualized protection, protection
that is not merely incidental to government's general police
enforcement duty. Jessica Gonzales had to go to court and prove
that she needed a restraining order before a judge, and the judge's
order contained findings that Simon Gonzales was a danger to the
Gonzales family specifically, not the public at large. 137 Upon this
finding, Jessica Gonzales and her children attained status under
138
the order as "protected persons."
To put it another way, Simon Gonzales was not prohibited
from entering any other person's dwelling upon their permission;
he was, however, prohibited from entering the dwelling of Jessica
Gonzales, even with her permission.
Thus the criminal act
requiring arrest is one created by the order, and not a crime for
which anyone else could be arrested. While Simon Gonzales may
have posed a danger to the general public, the issuance of a
restraining order against him regarding the rest of the Gonzales
family involves a process aimed directly and uniquely between one
individual and another, distinct from public law enforcement in
general.
When the Court belies the notion that Colorado's statutory
scheme invested Jessica with a protected interest, it points to the
absence of language indicating that the protected person can
request or demand that an arrest be made. 39 However, it would
be unnecessary or even antithetical to a statutory mandate of
enforcement that the statute include language allowing the
protected person to request or demand arrest. Arrest is made
upon probable cause, which can be furnished by citizen
136. Id. at 2808.
137. Gonzales v. Castle Rock, 366 F.3d 1093, 1096 (10th Cir. 2004). The
restraining order against Simon Gonzales stated that "the court... finds that
physical or emotional harm would result if you are not excluded from the family
home." COLO. REV. STAT. § 14-10-108 (2004).
138. COLO. REV. STAT. § 18-6-803.5.
Section (1.5)(a) continues to define
"protected person" as "the person or persons identified in the protection order as
the person or persons for whose benefit the protection order was issued."
139. 125 S. Ct. at 2808.
394
Law and Inequality
[Vol. 24:375
information, but not provided merely by a citizen's request or
demand for arrest. When arrest is mandatory upon the finding of
probable cause, the views or desires of the protected person or any
other citizen are irrelevant. Even as--or especially becauseprotective orders are specifically designed to guard protected
persons, protected persons cannot change their terms once they
are issued by the court. 4 0 Thus their requests or demands, once
the order is issued, do not factor into the requirement to arrest.
The Court further asserts that, even were it to believe that
the Colorado statute created a protected interest in enforcement, it
is not certain whether an entitlement to enforcement of a
restraining order, as opposed to traditional forms of property,
could constitute a property interest recognized by the Due Process
Clause.' 4 ' This argument contradicts the last thirty years of
constitutional jurisprudence, as the progression of protected
property interests have encompassed much more than traditional
monetary forms. 142 As the dissenting opinion in Gonzales points
out:
[T]he enforcement of a restraining order is not some
amorphous, indeterminate thing. Under the statute, if the
police have probable cause that a violation has occurred,
enforcement consists of either making an immediate arrest or
seeking a warrant and then executing an arrest-traditional,
well-defined tasks that law enforcement officers perform every
day. 143
Finally, the Court intimates that the benefit of enforcement is
incidental and indirect in nature, and thus does not amount to a
As already discussed, however,
deprivation in property. 144
enforcement of a personalized restraining order is not merely
incidental or indirect to the protected person's interests; on the
contrary, it is arguably one of the most important benefits in their
life at the time.
Though the Court never reached this point, we can answer
The
the question of what process was due with confidence.
restraining order against Simon Gonzales expressly states that he
140. 366 F.3d at 1096. The terms of the order in Gonzales stated:
If you violate this order thinking that the other party or a child named in
this order has given you permission, you are wrong .... The terms of
this order cannot be changed by agreement of the other party or the
child(ren). Only the court can change this order.
Id.
141.
142.
143.
144.
125 S. Ct. at 2809.
See, e.g., supra note 49.
125 S. Ct. at 2820 (Stevens, J., dissenting).
125 S. Ct. at 2810.
20061
EVERY REASONABLE MEANS
was entitled to a mid-week dinner visit upon reasonable, arranged
notice. 145 Simon did not provide notice before taking the girls from
their front yard. 146 Jessica Gonzales showed police officers her
protection order, 147 even though under Colorado law, she was not
required to show the order when requesting enforcement. 148 When
Jessica conclusively determined that Simon in fact had taken the
children, and located where he had taken them,'149 she again
informed the police, providing further probable cause for the police
to arrest Simon. 50 By the terms of Colorado protective orders,
upon even one violation of the order, law enforcement maintained
a duty to arrest Simon Gonzales. 1 1
IV. Why Critiquing and Challenging Gonzales is Essential
The holding of Gonzales brings with it costly consequences.
Several months after Gonzales, the United States Court for the
Middle District of Pennsylvania and the Western District of
Kentucky dismissed on summary judgment two factually similar
cases, Starr v. Price152 and Caldwell v. City of Louisville.153 These
cases held that under Gonzales, the petitioners in Starr and
Caldwell had no entitlement to enforcement of their protective
orders. 154 In other words, the effects of Gonzales are already
surfacing. Inevitably, more and more persons will be denied their
day in court to litigate this issue, and still more will suffer the
effects of Gonzales through potentially lax enforcement of
restraining orders designed to protect them, at least on paper.
Moreover, what is often well-known, but unspoken in
Gonzales, is that most protection orders are issued in protection of
female petitioners, who comprise the overwhelming majority of
domestic abuse victims. In essence, the Supreme Court of the
United States decided that petitioners-being mostly women--do
not possess a protected property interest in enforcement of their
protective orders, and that mandatory enforcement of protective
orders is actually less than mandatory. Thus, by recognizing such
145.
146.
147.
148.
149.
150.
151.
152.
153.
154.
307 F.3d 1258, 1266 (10th Cir. 2002).
Id.
125 S. Ct. at 2801.
See Fuller & Stansberry, supra note 72, at 2327.
See CBS NEWS, supra note 2.
125 S. Ct. at 2802.
COLO. REV. STAT. § 18-6-803.5(3)(b) (2005).
385 F. Supp. 2d 502 (M.D. Pa. 2005).
No. 3:01CV-195-S, 2005 WL 2290589 (W.D. Ky. Sept. 19, 2005).
385 F. Supp. 2d at 510-12; 2005 WL 2290589, at *2.
Law and Inequality
[Vol. 24:375
interests as employment, utility services, professional licenses,
and tax exemptions as entitlements protected by procedural due
process, the Court prioritizes these interests over women's bodily
integrity and safety.
Mandatory enforcement of protective orders can also be
accomplished without over-burdening police.
The federal
government's 2005 renewal of the Violence Against Women Act
(VAWA) appropriated over fifty-six million dollars specifically to
increase law enforcement response to domestic violence, 155 and the
VAWA Grants to Encourage Arrest Policies provides money to
local jurisdictions looking to strengthen enforcement of protective
orders. 56 Police departments around the country are already
undertaking stricter enforcement, and are finding reductions in
57
and homicide. 158
the rates of post-protective order violence
Overall, protective orders can and do lessen the risk to victims of
abuse, when used in practical yet consistent and committed ways
within the law enforcement community.
Conclusion
Gonzales v. Town of Castle Rock decided at least two things.
It held that one woman in Colorado did not possess a
constitutionally protected property interest in enforcement of her
restraining order. By the nature of and numbers surrounding
155. 42 U.S.C. § 3793(a)(18) (2006). As part of the Violence Against Women and
Department of Justice Reauthorization Act of 2005, Congress appropriated
$225,000,000 in STOP (Services/Training/Officers/Prosecutors) grants for the fiscal
year 2007. Id. States must allocate at least twenty-five percent of STOP grant
allotments to law enforcement specifically. 42 U.S.C. § 3796gg-l(c)(3)(A) (2006); see
SEN. JOSEPH R. BIDEN, JR., SUBCOMM. ON CRIME, CORR., AND VICTIMS' RIGHTS, TEN
YEARS OF EXTRAORDINARY PROGRESS: THE VIOLENCE AGAINST WOMEN ACT 10-11
(2004).
156. 42 U.S.C. § 3796hh(b)(1) (2006) (stating that the purpose of grant
appropriates are to "implement proarrest programs and policies in police
departments, including policies for protection order violations"). To qualify for the
grants, local governments must certify that their laws "encourage or mandate
arrest of domestic violence offenders who violate the terms of a valid and
outstanding protection order." Id. at (c)(1)(B). The grant appropriation is currently
set at $75,000,000 for fiscal years 2007 through 2011. 42 U.S.C. § 3793(a)(19)
(2006); see BIDEN, supra note 155, at 11.
157. See BIDEN, supra note 155, at 25 (citing a recent study finding that the
arrest and confinement of protective order violators reduced expected ensuing
aggression by thirty percent); NNEDV Brief, supra note 20, at 21 (discussing
results of a study that found decreased rates of re-abuse in states with a higher
percentage of violator arrest).
158. Nat'l Crime Victim Bar Ass'n, supra note 24, at 2 (noting that the Orange
County, Florida Sheriffs Department credits enhanced response to order violations
and consistent arrest of violators with a thirty-eight percent reduction in the rate of
domestic violence-related homicide).
2006]
EVERY REASONABLE MEANS
397
domestic abuse in this country, it also inevitably decided the fate
of thousands of people's lives in this country-mostly lives of
women.
The Supreme Court decided that neither explicit textual
commands nor significant legislative history supporting those
mandates were weighty enough to support the claim that the
Castle Rock police department should have enforced the
restraining order against Simon Gonzales within the dictates of
It has been illustrated in the
Colorado's statutory scheme.
since Gonzales, that protective
down
come
have
that
judgments
orders are in danger of becoming largely ineffective, and the
protection that abused women, men, and children are offered is
diminishing. A case with similar facts to Gonzales will occur
again, and tragically, a plea for recognition of a right to
enforcement of a protective order will be unsuccessful because of
Thus, lower court
the Supreme Court's myopic holding.
the pleas of
silence
will
precedent
the
Gonzales
of
enforcement
orders.
of
protective
enforcement
seeking
persons
abused
countless